The dissolution of universal partnership in South African law

Abstract

In this research the dissolution of the universal partnership is viewed through multiple lenses from ancient Roman law to modern insolvency and customary law. As the universal partnership is constantly developing, adapting and finding application in our law, the main inquiry of this research is concerned with the consequences that exist upon the dissolution of the universal partnership. The impact of the legislative departure from the common law upon the dissolution of the universal partnership due to insolvency is explored as the first inquiry. The second inquiry is focused on the application of the dissolution of the universal partnership as an interchangeable legal remedy in order to do justice between parties, by providing contractual remedies to the litigating parties. Foreign jurisdictions such as Botswana, Namibia and Zimbabwe have used the effects of dissolution of the universal partnership in various cases from putative marriages to customary law cases in order to do justice between the parties, although the parties never expressly created a universal partnership. The courts of Botswana and Zimbabwe have applied the consequences of dissolution in a reformative and liberal manner, without being side-tracked by legislative departures and debates, especially in customary law cases. In the leading Namibian equality jurisprudence, the universal partnership has also been employed in order to do justice between litigating parties. The main inquiry is thus concerned with the effects of the dissolution of the universal partnership. The inquiry is thus two-fold, focusing firstly on the departure from the common law as created by the Insolvency Act and secondly on the remedial judicial application of the consequences of its dissolution by foreign courts.